Riddle v. Hickenlooper
| Decision Date | 27 February 2013 |
| Docket Number | Civil Action No. 10–cv–01857–PAB–KMT. |
| Citation | 927 F.Supp.2d 1092 |
| Parties | Joelle RIDDLE, Gary Hausler, Kathleen Curry, The Committee to Elect Kathleen Curry, and The Libertarian Party of Colorado, Plaintiffs, v. John HICKENLOOPER, in his official capacity as Governor of the State of Colorado, and Scott Gessler, in his official capacity as Secretary of State of the State of Colorado, Defendants. |
| Court | U.S. District Court — District of Colorado |
OPINION TEXT STARTS HERE
William Edmond Zimsky, Abadie & Shill, PC, Durango, CO, for Plaintiffs.
Leeann Morrill, Matthew David Grove, Colorado Attorney General's Office, Denver, CO, for Defendants.
This matter is before the Court on the Motion for Summary Judgment [Docket No. 62] filed by plaintiffs Joelle Riddle, Gary Hausler, Kathleen Curry, the Committee to Elect Kathleen Curry, and the Libertarian Party of Colorado,1 as well as the Motion for Summary Judgment [Docket No. 70] filed by defendants John Hickenlooper, in his official capacity as Governor of the State of Colorado, and Scott Gessler, in his official capacity as Secretary of State for the State of Colorado.
In November 2002, the voters of Colorado passed Amendment 27, a constitutional amendment which imposed certain restrictions on campaign financing. Colo. Const. art. XXVIII, § 3; see Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1139 (10th Cir.2007). Amendment 27 states that “large campaign contributions to political candidates create the potential for corruption and the appearance of corruption,” Colo. Const. art. XXVIII, § 1, and, as a result, imposes limits on the amount individuals and political committees can contribute to a candidate for statewide office. Specifically, § 3(1) provides:
(1) Except as described in subsections (2), (3), and (4) of this section, no person, including a political committee, shall make to a candidate committee, and no candidate committee shall accept from any one person, aggregate contributions for a primary or a general election in excess of the following amounts:
(a) Five hundred dollars to any one:
(I) Governor candidate committee for the primary election, and governor and lieutenant governor candidate committee, as joint candidates under 1–1–104, C.R.S., or any successor section, for the general election;
(II) Secretary of state, state treasurer, or attorney general candidate committee; and
(b) Two hundred dollars to any one state senate, state house of representatives, state board of education, regent of the university of Colorado, or district attorney candidate committee.
Colo. Const. art. XXVIII, § 3(1). Those found in violation of the contribution limits are “subject to a civil penalty of at least double and up to five times the amount contributed, received, or spent.” Colo. Const. art. XXVIII, § 10(1).
On May 21, 2004, the Colorado General Assembly passed House Bill 1121 (“H.B. 1121”), which enacted statutory provisions to implement certain sections of Amendment 27. Specifically, H.B. 1121 provides that:
(3) A candidate committee may accept:
(a) The aggregate contribution limit specified in section 3(1) of article XXVIII of the state constitution for a primary election at any time after the date of the primary election in which the candidate in whose name the candidate committee is accepting contributions is on the primary election ballot; or
(b) The aggregate contribution limit specified in section 3(1) of article XXVIII of the state constitution for a general election at any time prior to the date of the primary election in which the candidate whose name the candidate committee is accepting contributions is on the primary election ballot.
(4) A candidate committee may expend contributions received and accepted for a general election prior to the date of the primary election in which the candidate in whose name the candidate committee is accepting contributions is on the primary election ballot. A candidate committee established in the name of the candidate who wins the primary election may expend contributions received and accepted by a primary election in the general election.
Colo.Rev.Stat. §§ 1–45–103.7(3)–(4). In effect, Colo.Rev.Stat. § 1–45–103.7 regulates contributions using a per-election framework, meaning that individuals and political committees 3 may contribute a total of $400 to a candidate who participates in both a primary election and a general election (i.e. $200 per election). Candidates who participate in a primary and a general election may accept $400 contributions at any time and may commingle primary election funds and general election funds without limitation.4 By contrast, individuals and political committees may only contribute $200 to primary-exempt candidates (i.e. candidates who only participate in a general election).5
In Colorado, candidates from the two major political parties—the Democratic Party of Colorado and the Colorado Republican Party—are always subject to a primary election, regardless of whether the primary is opposed.6 Therefore, for all statewide elections, all major party candidates may receive contributions of up to $400. By contrast, candidates for the three minor political parties—the Libertarian Party of Colorado, the American Constitution Party, and the Green Party of Colorado—are subject to a primary election only if their primary is opposed. SeeColo.Rev.Stat. § 1–4–1304(d) (). Write-in candidates and unaffiliated candidates do not participate in primary elections and their names do not appear on primary election ballots. SeeColo.Rev.Stat. § 1–4–1101(1) (write-in candidates); Colo.Rev.Stat. § 1–4–802 (unaffiliated candidates); Docket No. 60 at 9, ¶ 32. Unaffiliated candidates obtain access to the general election ballot by nominating petition as set forth in Colo.Rev.Stat. § 1–4–802.
B. Plaintiffs' Claims
Plaintiff Kathleen Curry is the former state representative for House District 61. In 2004, Ms. Curry ran as a candidate for the Democratic Party and was elected the state representative for House District 61. Ms. Curry subsequently won re-election in 2006 and 2008. In 2009, Ms. Curry disaffiliated herself from the Democratic Party. In 2010, she unsuccessfully ran for re-election as the state representative for House District 61 as an unaffiliated write-in candidate. Docket No. 60 at 11, ¶ 40. Ms. Curry also qualified to run as an unaffiliated candidate for House District 61 in the 2012 general election. Docket No. 74 at 2.
During her 2010 campaign, Ms. Curry authorized the creation of a political action committee—the Committee to Elect Kathleen Curry, a plaintiff in this case. Docket No. 60 at 11, ¶ 41. Pursuant to Amendment 27, the Committee to Elect Kathleen Curry could accept contributions of no more than $200 from individuals and political committees because, as an unaffiliated write-in candidate, Ms. Curry did not participate in a primary. Id. at 10, ¶ 39.
During the 2010 election, Ms. Riddle and Mr. Hausler contributed $200 to the Committee to Elect Kathleen Curry. Ms. Riddle and Mr. Hausler allege that they wished to make contributions to the Committee to Elect Kathleen Curry in excess of $200, but were deterred from doing so because of the possibility of facing penalties for violating Amendment 27 and its implementing statutes.7 Docket No. 60 at 11, ¶¶ 42–44. Similarly, the Committee to Elect Kathleen Curry asserts that it wished to accept additional contributions from Ms. Riddle and Mr. Hausler, but was prevented from doing so because of the risk of civil penalties.
During the 2010 election, Ms. Curry faced two opponents in the general election for House District 61: Democrat Roger Ben Wilson and Republican Luke Korkowski. Id. at 12, ¶ 45. Mr. Wilson and Mr. Korkowski had to participate in a primary election as representative candidates from the two major parties, but neither actually faced an opponent in the primary. Plaintiffs allege that, although Mr. Wilson and Mr. Korkowski did not have formal opposition in their primary elections, they could accept $400 from individuals and political committees—$200 for the primary and $200 for the general election.8Id.
Plaintiffs challenge the constitutionality of Colo.Rev.Stat. §§ 1–45–103.7(3) and (4). Docket No. 60 at 15–22. Plaintiffs contend that Amendment 27 is ambiguous and susceptible to multiple interpretations and that defendants' interpretation of Amendment 27, as reflected by Colo.Rev.Stat. § 1–45–103.7, violates their First Amendment rights. Id. Specifically, plaintiffs claim that Colo.Rev.Stat. § 1–45–103.7 violates their freedom of expression and freedom of association rights as well as their Fourteenth Amendment rights to equal protection under the law. Docket No. 60 at 14, ¶ 52. Plaintiffs raise both a facial and an “as applied” challenge to the constitutionality of Colo.Rev.Stat. § 1–45–103.7 and charge that the statute is: (1) facially unconstitutional as it abridges the associational and expressive First Amendment rights of all contributors to campaigns of primary-exempt candidates; (2) unconstitutional as applied to Ms. Riddle and Mr. Hausler as it abridges these plaintiffs' associational and expressive rights by limiting their ability to contribute to Ms. Curry's candidacy; (3) facially unconstitutional as it abridges the Fourteenth Amendment rights of all contributors to campaigns of primary-exempt candidates; and (4) unconstitutional as applied to Ms. Riddle and Mr. Hausler as it restricts these plaintiffs' ability to contribute to Ms. Curry's campaign in the same manner as other similarly situated contributors. Docket No. 60 at 14–22.
C. Procedural Posture
Plaintiffs commenced this action on August 4, 2010 [Docket No. 1]. On August 9, 2010, plaintiffs filed a motion for preliminary...
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